Global Compliance Desk – Germany

Germany Implements EU Working Time Directives on Transparent and Predictable Working Conditions

On June 24, 2022, the German Parliament (Bundestag) passed a bill to revise the German Act on Proof of Working Conditions Governing an Employment Relationship (Nachweisgesetz, NachwG) (Act) in order to align with the EU Directive 2019/1152 on Transparent and Predictable Working Conditions (Directive). The amendment is effective from August 1, 2022.

Documentation Requirement 

Previously, employers agreed on the essential working conditions in the employment contract and therefore did not have to provide separate evidence to employees. The existing obligations require an employer to provide proof with regard to the end date of an agreed time limit, the place of work, the termination, and the composition of the remuneration in writing and provide the signed document within 1 month of the employment to the employee. 

The employer’s responsibility to provide verified working conditions is significantly extended in the revised Act. Additional documentation must now be offered to the employee to include:

• The duration of an agreed probationary period;
• The method used to pay wages;
• Agreed rest breaks, rest periods, shift work including  the shift system, shift rhythm, and prerequisites for shift changes,
• Overtime and its conditions as agreed,
• Any entitlement to further education provided by the employer,
• Identifying information for the pension provider,
• The process that both the employer and the employee must follow when terminating their employment relationship, including the written form requirement, the deadlines for doing so, and the deadline for filing a claim for protection against such termination,
• Obligations to provide documentation in the case of foreign assignments of employees.

Prior to the amendment, the written confirmation could be submitted up to a month after the employment relationship. The new regulations state that the employer must provide all specific requirements in writing no later than the first day of employment. The use of electronic forms documentation and signing is still prohibited.

Penalty

Prior to the amendment, there was no penalty for the violation of the above documentation requirements. Hence employers provided incomplete or inaccurate information to the employee.

The revised Act states that, if the employer fails to provide the employee with the terms and conditions of the contract or gives them partial, incorrect, or inappropriate documentation it shall be considered a violation and will be subject to penalties of up to EUR 2,000 per employment contract as an administrative offense.

On-Call – under Part-Time and Fixed-Term Employment

Previously the Act did not provide for any specific obligations regarding the terms of on-call work.

In accordance with the revised act, the written confirmation or employment contract must include the minimum number of hours to be paid for on-call work and prior notice of 4 days shall be provided to the employee to perform on-call work. The following requirement should be fulfilled – 

• The employer must specify a time period that is fixed for the performance of the work and outside of which the employer is not permitted to demand any work performed. The time period will be established using the days and hours that an employee is required to perform his duties.
• Reference period (including time, period, length, etc) must be included in the written confirmation or the employment contract. If the employer does not establish a reference frame, the employee may refuse to perform work. 

In the case of employment relationships that already existed prior to August 1, 2022, the contractual terms and conditions according to new legislation can be requested by the employee and shall be provided within 7 days of such request in an additional information sheet signed by the employer. The template of employment contracts must be adapted.

Conclusion

Employers are required to check employment contract templates to make sure the fundamental terms and conditions of employment outlined above are met and if not they must immediately take the necessary measures to implement the changes in the respective organizations.

 

Kindly refer to the earlier blog on the EU Directive 2019/1152 – effect on the Member States. via this link.